28933_noh.doc

BEFORE THE IDAHO PUBLIC UTILITIES COMMISSION

IN THE MATTER OF THE PETITION OF THE COMMISSION STAFF REQUESTING THAT THE COMMISSION INVESTIGATE THE BUY-BACK RATES IN THE LETTER AGREEMENT ENTERED INTO BY IDAHO POWER COMPANY AND ASTARIS LLC )
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) CASE NO. IPC-E-01-43

NOTICE OF SCHEDULING

NOTICE OF HEARING

ORDER NO.  28933

On January 8, 2002, the Commission issued a Notice of Petition and initiated an investigation to review the buy-back rates contained in a Letter Agreement between Astaris LLC and Idaho Power Company. The background and procedural history of this case is contained in Order No. 28928. On January 14, 2002, the Commission convened a prehearing conference for the purpose of discussing preliminary issues and scheduling for this case. The parties having reached agreement concerning the scheduling and several substantive issues, the Commission issues this Order pursuant to Rule 214, IDAPA 31.01.01.214.
THE PREHEARING CONFERENCE
A. The Parties
In the Commission’s Notice of Petition, it established a deadline for intervention as of the date of the prehearing conference. Order No. 28928 at 10-11. This Order designated Idaho Power Company and Astaris LLC as parties to this case. Other persons desiring to intervene were invited to file a Petition to Intervene. The Commission received three timely petitions to intervene. First, Astaris LLC, FMC Corporation and Astaris Idaho LLC filed a joint Petition to Intervene. The Commission also received petitions from the Industrial Customers of Idaho Power (ICIP) and the Idaho Irrigation Pumpers Association. All of the petitioners alleged a direct and substantial interest in this case. In addition, the petitioners all entered appearances at the prehearing conference. No objection to their requests for intervention was made.
Given the lack of any objection and based upon our review of the petitions, the Commission grants the Petitions to Intervene. IDAPA 31.01.01.074-.075. For purposes of this case, it appears that Intervenors Astaris Idaho and FMC are aligned with Astaris. In addition, these three parties are all represented by the same counsel. Consequently, we shall treat the three companies as a single party in this matter. These parties shall be collectively referred to as “Astaris” unless specific distinctions are necessary.
B. Other Issues
The Commission Staff, Astaris and Idaho Power advised the Commission that they had engaged in settlement negotiations and reached agreement on several matters. These issues are discussed below.
1. Escrow Account and Refunds. In its initial petition, the Staff urged the Commission to establish an “escrow account” in this case. Staff Petition at 13-14; Notice of Petition at 8-9. As proposed by the Staff, Idaho Power should pay Astaris for the 50 megawatts (MW) of buy-back power at the Staff’s proposed current forward market prices and place the difference between these forward prices and the buy-back rates of the Letter Agreement in the escrow account. As the Commission understands it, use of an escrow account would make funds available for a refund if the Commission affirmed the Staff’s position. Prior to the hearing, Astaris filed a “Prehearing Statement” requesting that the Commission disallow the use of the escrow account. Astaris Statement at 6.
Following settlement discussions, Staff, Astaris and Idaho Power entered into an understanding, as memorialized in the “Statement of Understanding,” whereby Staff has withdrawn its request that the Commission establish an escrow account. For its part, Astaris affirmed that it has sufficient resources to meet any obligation ordered by the Commission without waiving its right to seek redress with the Commission or a court. Astaris commits that if the Commission’s final Order in this matter were to require Astaris to refund monies to Idaho Power, Astaris will do so within 38 days of the service date of the Commission’s final Order. The three parties reserve the right to seek a stay from the Commission or a court of competent jurisdiction regarding any refund that may be ordered by the Commission.
Staff also committed that it shall not seek to require Astaris to refund any monies due and payable under the Letter Agreement prior to the issuance of Commission Order No. 28928 issued on January 8, 2002. If the Commission’s final Order directs Astaris to refund monies to Idaho Power, Astaris may seek a stay of such Order but it shall not assert as grounds for such a stay that Astaris is unable to comply with refunding the monies within 38 days or that paying such a refund will cause Astaris financial harm. The parties also agree that withdrawal of the Staff’s escrow proposal shall not be grounds for arguing that Staff waived any argument that the Commission should order a change in rates effective January 8, 2002.
In the Statement of Understanding all parties reserved the right to make any arguments they deem reasonable as to whether a Commission Order requiring a refund of monies paid to Astaris violates the prohibition against retroactive ratemaking and that Staff’s withdrawal of its request to establish an escrow account has no relevance as to whether such a decision violates the prohibition against retroactive ratemaking. Intervenors ICIP and the Pumpers Association did not object to these provisions.
2. Scheduling. The parties also agree that this case should “proceed with all due haste and urge the Commission” to issue a decision no later than March 22, 2002. The parties proposed and we adopt the hearing schedule set out below.
NOTICE OF SCHEDULING
YOU ARE HEREBY NOTIFIED that pursuant to agreement of the parties, the Commission adopts the following schedule:

January 28, 2002

January 29, 2002

February 8, 2002

February 15, 2002

March 8, 2002 Deadline for Astaris Brief/Motion

Deadline for Astaris, Idaho Power Company and all Intervenors prefile direct testimony

Deadline for cross answer and/or rebuttal prefile testimony all parties except Staff by noon MST

Deadline for Staff prefile rebuttal testimony by noon MST

Deadline for post-hearing brief – all parties
3. Discovery. The parties also reached agreement on discovery procedures. Discovery shall remain open until 12 p.m., February 20, 2002. The parties agreed that discovery requests made by written interrogatories shall be answered within seven days of receipt with one exception. In the event Staff files rebuttal testimony on or before February 15, 2002 it shall be required to answer any written discovery request regarding that testimony by no later than 12 p.m., February 20, 2002. The prepared testimony and exhibits must conform to the requirements of Rules 266 and 267 of the Commission’s Rules of Procedure. IDAPA 31.01.01.266-.267.
4. Service. The parties have agreed to serve documents by electronic mail. Consequently, the Commission shall issue a separate Notice of Parties listing the e-mail addresses, detailing the procedures for electronic service, and reducing the number of printed documents that must be filed with the Commission Secretary.
NOTICE OF HEARING
YOU ARE FURTHER NOTIFIED that the Commission will conduct an evidentiary hearing in Case No. IPC-E-01-43 on THURSDAY AND FRIDAY, FEBRUARY 21-22, 2002, COMMENCING AT 9:30 A.M. AT THE COMMISSION HEARING ROOM, 472 WEST WASHINGTON, BOISE, IDAHO (208)-334-0300.
YOU ARE FURTHER NOTIFIED that all hearings in this matter will be held in facilities meeting the accessibility requirements of the Americans with Disabilities Act (ADA). Persons needing the help of a sign language interpreter or other assistance in order to participate in or to understand testimony and argument at a public hearing may ask the Commission to provide a sign language interpreter or other assistance at the hearing. The request for assistance must be received at least five (5) working days before the hearing by contacting the Commission Secretary at:
IDAHO PUBLIC UTILITIES COMMISSION
PO BOX 83720
BOISE, IDAHO 83720-0074
[phone] (Telephone)
[phone] (FAX)
E-Mail: [e-mail]

YOU ARE FURTHER NOTIFIED that all proceedings in this case will be held pursuant to the Commission’s jurisdiction under Title 61 of the Idaho Code and that the Commission may enter any final Order consistent with its authority under Title 61 and specifically Idaho Code §§ 61-129, 61-301, 61-305, 61-501, 61-502, 61-503, and 61-624.
YOU ARE FURTHER NOTIFIED that all proceedings in this matter will be conducted pursuant to the Commission’s Rules of Procedure, IDAPA 31.01.01.000 et seq.
O R D E R
IT IS HEREBY ORDERED that the Petitions to Intervene filed by Astaris Idaho LLC, FMC Corporation, the Idaho Irrigation Pumpers Association and the Industrial Customers of Idaho Power are granted. For purposes of this case, the interests of Astaris, Astaris Idaho and FMC are aligned and they shall be treated as a single party in this case.
IT IS FURTHER ORDERED that the Commission does hereby adopt the scheduling and hearing dates set out above. Parties shall adhere to the schedule set out above.
IT IS FURTHER ORDERED that the Commission Secretary issue a separate Notice of Parties listing e-mail addresses and exhibit numbers. The Notice of Parties shall prescribe the manner of service and the number of printed documents to be filed with the Commission Secretary. Parties shall also comply with the procedures contained in the Notice of Parties.
DONE by Order of the Idaho Public Utilities Commission at Boise, Idaho this
day of January 2002.

PAUL KJELLANDER, PRESIDENT

MARSHA H. SMITH, COMMISSIONER

DENNIS S. HANSEN, COMMISSIONER

ATTEST:

Jean D. Jewell
Commission Secretary

O:IPCE0143_jh2
Idaho Power noted for the record that it had not yet received copies of the petitions and thus reserved any objections it might make until it had reviewed them.
Idaho Power asserted at the prehearing conference that it has privity of contract under the Agreement (ESA) and Letter Agreement that amended the ESA only with Astaris LLC and not Astaris Idaho or FMC.

NOTICE OF SCHEDULING
NOTICE OF HEARING
ORDER NO. 28933 1

Office of the Secretary
Service Date
January 18, 2002